Lonmin Tragedy: Time to Take Human Rights Due Diligence Seriously

Earlier this week, only days after South African police opened fire killing 34 striking workers at a mine operated by UK based company Lonmin (which operates several mines for precious metals including platinum), company executives ordered 3,000 miners to return to their posts or face dismissal. The press release confirming the ultimatum stressed that the company's action was legal and the strikers’ actions were illegal. The company referred to the police massacre as "tragic" without assuming any responsibility for the event.

Industrial relations in mines have never been easy in South Africa, but the proximate cause for the recent violence is over a wage dispute. Workers have demanded a pay raise from a monthly salary of 4,000 Rand to 12,500 Rand. Such a demand may seem impossible to realize, but workers say supporting a family on 4,000 Rand ($480) a month is equally impossible. South Africa has not published a living wage rate, but the average urban household monthly income in South Africa is over 14,000 Rand. At the same time, demand for platinum, used primarily in catalytic converters to control car emissions, is down, because of a down turn in the auto industry. Lonmin hasn't recorded profits this year, and it is carrying a significant debt burden. Both sides are firmly rooted in their positions.

A number of arguments supporting the company’s position have been made, which require further analysis. But even more critical now is the need to provide justice for victims and take the steps to ensure that security forces and the company operate consistent with respect for fundamental human rights.

Argument One: This was not about Lonmin; it was a turf war between rival unions

One argument voiced by the company is that the current crisis has its roots in rivalries between unions. Union tensions have grown since May 2011 when the National Union of Mineworkers (NUM) ceased to recognize the local leadership at Lonmin's Karee branch in the Marikana mine group. When Lonmin management announced that it would no longer interact with local NUM leaders, all 9,000 employees went on strike. In response, the company fired all the workers. It later rehired workers selectively.

That the entire workforce walked off the job in solidarity with their leadership suggest the hold of the union’s local leadership and the significant discontent with management. Workers stated as much in interviews with the South African affiliate of the Committee for Workers International (CWI), describing Karee NUM leadership as proactively involved in improving wages and work conditions, while NUM regional leadership had distanced itself from the activist union leaders on site.

Karee is now largely aligned with the Association of Mineworkers and Construction Union (AMCU), whose founders broke from NUM in 1998, claiming to be apolitical and more deeply engaged with worker concerns.

NUM's membership in Lonmin's mines declined from a high of 66% to 49% this May, jeopardizing its position as the recognized union at Marikana. Both NUM and the AMCU were aggressively recruiting members in August. NUM has played a major role in South African history as the largest collective bargaining agent in the country. In the 1980s NUM was a critical part of the anti-apartheid movement, and it played a crucial role in ending policies that ensured the best jobs went to whites, but allegations of corruption have weakened the union in recent years. The AMCU has competed with the 30-year-old NUM for membership with increasing strength in recent years and is currently led by the ousted ANC youth leader Julius Malema, who vocally denounces the current ANC political leadership and its close ties to NUM, and who has been twice convicted for hate speech.

For the miners' part, they care about improving working conditions, not which union would have the privilege of representing them. Protesting workers told reporters at the South African Mail and Guardian they were a united force with no allegiances to a particular union and were fed up with years of broken promises. Their selection of nonunion leadership to conduct talks with management Tuesday reinforces the claim. The turf was only up for grabs because conditions remained so poor in Lonmin's mines and shanty town and workers were eager for solutions, according to reports. "Life here isn't life," a miner's wife told an AFP reporter. Mineworkers earn salaries of 4,000 rand ($480) per month, which is less than a third of the government's reported average mining salary, and workers say the current salary is insufficient to support families.

Argument Two: The company was not involved; the police acted independently

A second argument seeks to distance the company from police actions. Lonmin statements expressed gratitude for an increased police presence after an earlier violent incident, in which protests resulted in the deaths of two policemen, two security workers and six mineworkers. It is not clear whether South African government representatives had sent the police or the company had summoned them. When the police ordered striking miners to leave the hill where they were protesting, miners questioned whether orders were coming from the police or mine authorities in the hours before the Thursday massacre.

Workers reportedly refused to leave their protest site because policemen spoke to them in the pidgin tongue of South Africa's miners, Fanakalo. "Which policeman knows fanakalo?" one worker reportedly scoffed in an interview with the Mail and Guardian. The jeer, the reporter explains, implied that the police had been infiltrated by company personnel who were trying to lure them back to work because the police usually do not speak the language of the workers. At the funeral for one of the two policemen killed at Marikana, the police commissioner described the miners as "heartless criminals who are gunning for our lives" and told officers, "don't be sorry about what happened."

If the remarks are reported accurately, this is hardly consistent with the approach a responsible force should take, whose mandate is to respect human rights. Use of lethal and excessive force, including torture, against suspects and detainees has been a consistent problem within South Africa's police force. In 2011 alone there were nearly 800 deaths (and nearly 1000 assault cases) at the hands of the South African Police Service. Best practice in the mining industry calls for assessment of the human rights records of public security forces to prevent individuals credibly implicated in human rights abuses from providing security services for companies – there is no evidence that such an assessment was ever conducted by the company.

Argument Three: This is an unprecedented outlier, not systemic failure

A final argument contends that this tragedy was an unprecedented response by police and that its magnitude was unforeseeable. But observers doubt that; they believe it was preventable. Analysts have been watching and predicting unrest at Lonmin’s platinum mines for months. Human rights tools and principles exist to prevent extreme outcomes associated with foreseeable strife.

The Voluntary Principles for Security and Human Rights, around which Lonmin policies are built, are designed so that companies which wish to protect their people and assets do not undermine human rights in the process. The UN has also adopted principles regarding proportionate use of force. The human rights due diligence process outlined in the UN Guiding Principles on Business and Human Rights and endorsed by the UNHRC, the OECD, the GRI, ICMM, and the Government of the UK, where Lonmin is based, is designed to support companies in understanding underlying conditions that may if unattended lead to severe abuses.

This should not be news to Lonmin, which avers that its policies are informed by the Voluntary Principles, the Global Compact, the Universal Declaration of Human Rights, the ILO and the International Council of Mining and Metals. Yet multiple warning signs appear to have gone unheeded.

Moving Forward

Where should we go from here? How does a company address demands for 300% wage increases when it is operating in the red and the outlook is bleak? How can it rebuild relations with a workforce that has lost 40 members (including the 6 killed before the Thursday police shooting) in the bloodiest incident in South Africa's post-Apartheid era?

Clearly, the answer is not for any company to bankrupt itself, nor is it simply to issue a new policy and hope for the best. The long and difficult way forward must begin with a real commitment to ongoing human rights due diligence. Lonmin committed to as much in its 2011 Sustainability Report. Of course, even the most effective human rights due diligence processes won’t provide an immediate fix to such complex problems, nor ensure that such problems will not recur, but concrete actions consistent with the UN Guiding Principles will over time demonstrate to workers that management recognizes their value as individuals and the validity of their complaints.

The UN Guiding Principles outline a process for identifying, predicting and responding to potential human rights impacts of a business operation. Lonmin should publicly commit to conducting a detailed assessment of the human rights baseline situation at its sites and measure its treatment of labour and communities against the standards provided in the International Bill of Rights and ILO Core Conventions. If the conditions described in news reports are accurate, rights to adequate housing, food, health, adequate standard of living, collective bargaining and favorable work conditions are neither being respected, nor protected or fulfilled.

Lonmin, like so many other companies, has a great deal of work to do to ensure it respects human rights throughout its operations. Demonstrating that it recognizes the humanity of its workers would be a valuable first step. In addition to the internal processes recommended above, Lonmin should comply fully with investigations of this incident. The Government of South Africa has committed to conducting an investigation, which may have legal ramifications for the company. In addition, the Office of the Compliance advisor at the International Finance Corporation should conduct its own investigation as well, as the IFC is an equity owner in the company.